9911796707
TMI Blog2000 (6) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... cts are: The staff of the Directorate of Revenue Intelligence (DRI) examined 152 packages in respect of several shipping bills dated 15-5-90 and 1-6-90 filed by a firm called M/s. Excalibur Steel at the Delhi Airport and it was found that all the packages contained wooden shavings, sand, waste paper etc., instead of Photocromic Lenses as declared by the Exporter in the shipping bills. All these goods covered by the above shipping bills, had already been examined by the Airports Customs Officers and 'Let Export' order had been given on the shipping bills. Investigations revealed that the Exporter had acted in a fraudulent manner in connivance with the Customs staff on duty by mis-declaring the goods with a view to obtaining duty drawback on the declared items. Show cause notice was therefore issued on 22-8-96 to the exporter, M/s. Excalibur Steel and its proprietor Shri Akhilesh Kala proposing confiscation of the goods and imposition of penalty. The Customs Officers connected with the clearance of the said shipping bills, namely, Shri Wilson Hangshing, Asst. Collector, Shri M.I. Khan, Superintendent and Shri R.K. Sharma, Inspector were also asked to show cause why penal action shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Asst. Collector in-charge of such consignments relating to drawback is required to countersign the shipping bills to ensure that no fraudulent claim for drawback is allowed to be made and the goods passed for shipment under drawback scheme are actually goods which are declared in the shipping documents. The Department contends that though in the absence of duplicate copy of the shipping bills, which normally contains signatures of the Officers who had examined the goods and cleared them for export, the various statements on record and the warehouse register of the godown and other documents had clearly established that the shipping bills had been passed by the three Respondents without any objection. Both Inspector, Shri R.K. Sharma and Superintendent Shri M.I. Khan had in their statements admitted to having examined the goods under different shipping bills, though in the statement given by the Superintendent, he had stated that he had seen only samples and not the total consignments. The Asst. Collector had also sought to deny the allegation about his involvement by denying having seen the consignments. Since the Asst. Collector had given permission for 'Let Export' order wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication of the goods and satisfy themselves about the description and the value and if they had any doubt they should have brought that on record and get the samples tested. By allowing the 'Let Export' order to be issued on the consignments containing only waste material against the 28 shipping bills, it was quite evident that Shri M.I. Khan, Superintendent, deliberately abetted the fraudulent transaction indulged in by the exporter. The Asst. Collector, Shri W.L. Hangshing was also a party to the false examination report inasmuch as he was responsible for the issue of the 'Let Export' order. Considering the statements given by the Inspector, it is quite evident that the Asst. Collector was acting in connivance with the exporter and had thereby abetted in the fraud committed by the exporter. 7.On the question whether Section 155 of the Customs Act, 1962 barred taking out proceedings against the appellants, including the issuance of SCN under Section 124 proposing penalty under Section 114(iii), the Departmental Representative has strongly contended that Section 155 would not be applicable to the adjudication proceedings under Section 122 which are quasi-judicial in nature wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, according to Ld. Counsel, there was also no evidence on record to show that the Respondent, Shri W.L. Hangshing, had seen any of the packages which contained the bogus goods. The Department had also not produced the second copy of the shipping bills which containing the signature of the Respondent . 9. Ld. Counsel therefore, submitted that the Department has not shown that the impugned order dropping the proceedings against the appellant suffered from any infirmity either on legal or factual grounds. He prayed for the dismissal of the appeal against the appellant, Shri W.L. Hangshing, A.C. 10.Arguing the defence of Shri R.K. Sharma, Inspector, ld. Counsel, Shri K.K. Anand adopted the legal submissions made by Shri A. Madhava Rao, ld. Advocate for Shri W.L. Hangshing, A.C. Further, he drew attention to the fact that Section 40 of the Central Excise Act, 1944 (after its amendment in 1973) was in pari materia with Section 155 of the Customs Act, 1962. In G.H. Industries v. CCE, Ahmedabad [1997 (94) E.L.T. 483 (Guj.)], Hon'ble Gujarat High Court had held that the bar under Section 40 of the Central Excise Act would operate when action is taken in good faith by the Officers. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt since Shri R.K. Sharma had stated that he had examined only a few consignments which were found to be in order, whereas the DRI had found that the said consignments did not contain the declared goods. He relied on the following case lew in support of his contention that where documentary evidence showed the existence of a particular fact, any oral evidence to contrary cannot be accepted, (a) R.P. Industries v. CCE 1996 (82) E.L.T. 129 (T) and (b) Zunjarrao Bhikaji Nagarkar - 1999 (112) E.L.T. 772 (S.C). In view of the foregoing, ld. Counsel pleaded for the dismissal of the Departmental appeal against Shri R.K. Sharma. 11.Appearing for Respondent, Shri M.I. Khan, Superintendent, ld. Counsel Shri J.S. Agarwal referred to the "other evidence" mentioned in Para 3.4 in the Board's order and stated that there was no such evidence on record and none had been explicitly brought out. In the absence of any documentary evidence to show that Respondent, Shri M.I. Khan had allowed the clearances of the consignments, penal action cannot be taken on the basis of mere suspicion. Reliance was placed on the Supreme Court decision in Bhana Khalpa Bhai Patel v. Asst. Collector of Customs Bulsar, G ..... X X X X Extracts X X X X X X X X Extracts X X X X
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